Citation Nr: 0126886
Decision Date: 11/30/01 Archive Date: 12/03/01
DOCKET NO. 97-01 066 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Republic of the Philippines
THE ISSUE
Entitlement to service connection for post traumatic stress
disorder.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
INTRODUCTION
The veteran had active service from May 1956 to January 1970.
This action is on appeal to the Board of Veterans' Appeals
(Board) from a January 1996 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Houston,
Texas in which the RO denied entitlement to service
connection for post-traumatic stress disorder (PTSD). The
claims folder is currently being kept by the Manila RO.
The veteran was scheduled to testify at a personal hearing in
September 1998, but he failed to appear.
The Houston RO denied service connection for a nervous
condition in February 1998 and notified the veteran of its
decision and of his right to appeal it within one year
thereof. No timely appeal was filed.
FINDINGS OF FACT
1. The veteran did not engage in combat with the enemy, and
his alleged stressors do not involve combat.
2. PTSD has not been diagnosed.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated by active service.
38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 1991 & Supp.
2001); 38 C.F.R. §§ 3.303, 3.304(f) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA
There has been a significant change in the law during the
pendency of this appeal with the enactment of the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000). This law eliminates the concept of a
well-grounded claim, redefines the obligations of VA with
respect to the duty to assist, and supersedes the decision of
the United States Court of Appeals for Veterans Claims in
Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom.
Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000)
(per curiam order) (holding that VA cannot assist in the
development of a claim that is not well grounded). The new
law also includes an enhanced duty to notify a claimant as to
the information and evidence necessary to substantiate a
claim for VA benefits. The VCAA is applicable to all claims
filed on or after the date of enactment, November 9, 2000, or
filed before the date of enactment and not yet final as of
that date. Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099 (2000).
See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In
this case, although the RO could not have considered the VCAA
before it was enacted, and although it did not expressly
address the provisions of the VCAA after it was enacted, VA's
duties have been fulfilled nevertheless.
First, VA has a duty to notify the veteran and his
representative of any information and evidence needed to
substantiate and complete a claim. Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114
Stat. 2096, 2096-97 (2000) (38 U.S.C. §§ 5102 and 5103) (West
Supp. 2001). The record shows that the veteran was notified
of RO rating decisions, and that he has been provided a
statement of the case and supplemental statements of the
case, informing him of the evidence necessary to substantiate
his claim and of the criteria needed to be satisfied. The
Board concludes that the discussions in the rating decision,
statement of the case, supplemental statements of the case,
and letters sent to the veteran informed him of the
information and evidence needed to substantiate his claim and
complied with VA's notification requirements. The Board
notes that in April 1995, the RO sent the veteran a PTSD
questionnaire letter, and that in October 1996, it sent him a
letter advising him that doctors' statements were advisable.
In May 2001, it sent him a letter asking for more information
from him on his stressors, telling him to submit it within 60
days. In August 2001, the veteran indicated that he had no
additional evidence to furnish.
Second, VA has a duty to make reasonable efforts to help the
veteran obtain evidence necessary to substantiate the claim.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 3(a), 114 Stat. 2096, 2097-98 (2000) (38 U.S.C. § 5103A)
(West Supp. 2001); 38 C.F.R. § 3.103 (2001). The RO has
obtained the veteran's service medical records, his service
personnel records, and a VA psychiatric examination report.
It requested information from the U.S. Armed Service Center
for Research of Unit Records (USASCRUR) in February 1998. It
wrote the veteran letters in October 2000 and May 2001 asking
him to provide more information regarding his claimed
stressors. In August 2001, the veteran indicated that he had
no more information to submit and that he wanted Board
consideration of his claim as soon as possible. As late as
September 2001, the RO advised the veteran that he could
still submit additional evidence. Evidence of record is
sufficient for the determination at issue, and no other
development is deemed necessary. See
38 U.S.C.A. § 5107A(c)(1) and 38 C.F.R. § 3.304(c) (2001). VA
has made reasonable efforts to help the veteran obtain
necessary evidence. 66 Fed. Reg. 45620-45632 (Aug. 29, 2001)
(to be codified at 38 C.F.R. § 3.159(c)).
The communications from VA to the veteran informed him of the
type of evidence which would be relevant and assisted him in
providing it.
In this case, the Board finds that VA has complied with the
duty to assist and the duty to notify the veteran and his
representative of any information and evidence needed to
substantiate and complete a claim. It is concluded that the
actions of VA meet the requirements of VCAA and
38 C.F.R. § 3.103 (2001).
In the circumstances of this case, a remand would serve no
useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided).
Finally, even though the RO did not have the benefit of the
explicit provisions of the VCAA before it was enacted, VA's
duties have been fulfilled. Moreover, as the Board finds
that the directives of the VCAA have been complied with
regarding VA's duties to notify and to assist the appellant,
the Board finds that the appellant has not been prejudiced by
the Board's consideration of the merits of his claim, as set
forth below. See Bernard v. Brown, 4 Vet. App. 384 (1993)
[when the Board addresses in its decision a question that has
not been addressed by the RO, it must consider whether the
appellant has been given adequate notice to respond and, if
not, whether he has been prejudiced thereby]. For the
reasons previously set forth, the Board believes that the
veteran has been given ample process to provide evidence and
argument in support of his claim. In short, the Board finds
that the veteran has been given adequate notice of the need
to submit evidence or argument and that he is not prejudiced
by this decision.
Factual Background
Service medical records indicate that the veteran was
referred to psychiatry in September 1969 since he had had
multiple administrative, financial, and family problems, and
since he had decompensated the night before, with extreme
agitation and gross paranoid ideation. The diagnosis was
adult situational reaction.
He was seen by a psychiatrist again later in September 1969
and the impression was acute situational reaction in
emotionally unstable personality, and it was felt that he
might have to be admitted.
The veteran had two service hospitalizations, the first from
late September 1969 to early October 1969, and the second
from two days thereafter to mid-October 1969.
The first hospital summary indicates that the veteran had had
emotional instability, lability, and fear of being unable to
control aggressive impulses. Much acting out behavior was
described by various sources, and it was indicated that the
veteran was being prone to emotional lability, excessive
consumption of alcohol, and general acting out behavior of an
antisocial nature. The diagnoses were acute situational
reaction, resolved, and sociopathic personality disorder.
The second hospital summary indicates that the precipitating
stress resulting in the current hospitalization was his
wife's persistence in demanding separation and divorce. He
had then become distraught and agitated and began drinking
alcohol the night prior to admission. He stated that he had
had some suicidal thoughts and he had driven his car toward a
wall and damaged it. The examiner felt that this was largely
a manipulation in a suicidal gesture rather than a bona fide
suicide attempt.
He was emotionally labile and distraught during the first
twelve hours of hospitalization but thereafter he recomposed
himself and at no time was there any evidence of psychosis,
depression, or other psychoneurosis or psychiatric illness.
He was seen as a very glib, manipulative individual with very
strong sociopathic traits. It was noted that the veteran's
hospital record for the present admission as well as his
health record had disappeared, and it was strongly suspected
that the veteran had gained access to them and that he now
had them or had destroyed them. The diagnoses were acute
situational reaction, and sociopathic personality.
On service discharge examination in January 1970, the
veteran's psychiatric status was found to be normal. There
was no evidence of psychiatric disorder or illness. The
veteran was discharged in January 1970.
In February 1995, the veteran filed a claim for service
connection for PTSD. In December 1996, the veteran submitted
a statement describing his stressors. He reported that while
aboard the U.S.S. TARAWA in 1957, there was a helicopter
crash which killed the pilot, the co-pilot, and both crew
members, and then he was assigned to remove the burned bodies
from the wreckage. He stated that he was friends with the
individuals who were killed and this experience caused him to
cry for over a month and become deathly sick and depressed.
He also stated that he later watched as a friend of his whom
he had known since high school was killed during a training
exercise. He further reported that while he was aboard the
U.S.S. INDEPENDENCE, the ship collided with the U.S.S.
DIAMOND HEAD. The veteran saw a man thrown from the deck of
the DIAMOND HEAD and another covered with fire. The veteran
also stated that while on the U.S.S. INDEPENDENCE, a pilot
walked into a propeller, and the veteran gathered up the body
parts and carried them to sick bay. This experience left him
sick for two weeks and unable to stop crying.
In August 1998, the USASCRUR provided information which
indicated that the ship collision to which the veteran had
alluded had in fact occurred, in April 1961, and that the
U.S.S. DIAMOND HEAD was out of commission for two months as a
result of damage incurred in the accident.
In October 2000, the RO asked the veteran to provide more
pertinent information such as the names of the fellow sailors
that were killed while he served on board the U.S.S.
INDEPENDENCE, the name of the person he claimed walked into
the prop and was killed, and the names of the helicopter
crash victims.
On VA psychiatric examination in November 1996, the veteran's
claims folder was made available to and reviewed by the
psychiatrist whom examined him. The psychiatrist reviewed
the veteran's service medical records, noting that they
contained documentation of hospitalizations for psychiatric
treatment in 1969. In the service medical records, it was
noted, it was reported that the veteran had become depressed
and anxious at the time when he was experiencing marital,
financial, and administrative difficulties. He had displayed
suicidal behavior that was not considered to reflect true
suicidal intent. It was noted that history which had been
obtained by the service department health care providers,
from the veteran, from his wife, and from members of his
command revealed evidence of longstanding characterological
defect characterized by acting out behavior, emotional
lability, antisocial acts, and excessive consumption of
alcohol. There was no documentation of treatment since that
date. The veteran stated that he was receiving no
psychiatric treatment, but that he had had a couple of
"nervous breakdowns" since he had been discharged from the
service. He stated that he had been hospitalized for
psychiatric treatment, in a facility which no longer exists,
in 1974 or 1975. He reported that during those
hospitalizations, he had been having nightmares, was scared
to death, and was depressed all the time.
He reported that over the past 5 or 6 years, he had feelings
of depression and a sense of impending doom. He was also
frightened all the time but he could not explain why. He
described some of his claimed in-service stressors. After
clinical examination, the diagnoses were: on axis I, anxiety
disorder, not otherwise specified, with PTSD symptoms
(provisional); and alcohol and polysubstance abuse, in
sustained remission; and, on axis II, personality disorder,
not otherwise specified, with cluster B traits. The examiner
commented: "The Axis I diagnosis at number one is shown as
provisional pending verification of stressor exposure. At
this time the symptoms do not meet the diagnostic criteria
for PTSD."
In August 2001, the veteran indicated that he had submitted
all of the evidence he was going to submit, and that he
wanted to wait no longer for a Board decision.
Pertinent Law and Regulations
In order for service connection to be granted, it must be
shown that there is disability present which was the result
of disease or injury which was incurred or aggravated in
service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2001);
38 C.F.R. §§ 3.303 and 3.304 (2001). A showing of incurrence
may be established by affirmatively showing inception during
service, and each disability must be considered on the basis
of the places, types, and circumstances of service as shown
by service records. With chronic disease shown as such in
service, subsequent manifestations of the same chronic
disease at any later date, however remote, are
service-connected, unless clearly attributable to
intercurrent causes. This rule does not mean that any
manifestation of joint pain will permit service connection of
arthritis first shown as a clear-cut clinical entity at some
later date. For the showing of chronic disease in service
there is required a combination of manifestations sufficient
to identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"Chronic." Service connection may be established for disease
diagnosed after discharge when all of the evidence including
that pertinent to service establishes that it was incurred in
service. 38 C.F.R. § 3.303(a), (b), and (d).
Service connection for post-traumatic stress disorder
requires medical evidence diagnosing the condition in
accordance with Sec. 4.124(a) of this chapter; a link,
established by medical evidence, between current symptoms and
an in-service stressor; and credible supporting evidence that
the claimed in-service stressor occurred. If the evidence
establishes that the veteran engaged in combat with the enemy
and the claimed stressor is related to this combat, in the
absence of clear and convincing evidence to the contrary, and
provided that the clamed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's
service, the veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor. If the
evidence establishes that the veteran was a prisoner-of-war
under the provisions of Sec. 3.1(y) of this part and the
claimed stressor is related to that prisoner-of-war
experience, in the absence of clear and convincing evidence
to the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor.
38 C.F.R. § 3.304(f) (2001). See also 38 U.S.C.A. § 1154(b)
(West Supp. 2001).
Analysis
Under 38 C.F.R. § 3.304(f) (2001), service connection for
post-traumatic stress disorder requires medical evidence
diagnosing the condition; a link, established by medical
evidence, between current symptoms and an in-service
stressor; and credible supporting evidence that the claimed
in-service stressor occurred.
The veteran does not allege and the evidence does not show
that the claimed stressors occurred while he was in combat.
Thus, evidence supporting the occurrences of the claimed
stressors must be furnished. As to the occurrence of the
alleged stressors, the only one that has been factually
verified is the collision of the INDEPENDENCE and the U.S.S.
DIAMOND HEAD.
Moreover, in this case, the evidence does not show that the
veteran has PTSD. Instead, it indicates that the veteran has
an anxiety disorder with PTSD symptoms, and that he has a
personality disorder, the latter of which is not subject to
service connection. 38 C.F.R. § 3.303(c) (2001). PTSD was
not diagnosed. The provisional diagnosis was anxiety
disorder with PTSD symptoms. The psychiatrist indicated that
the veteran's symptoms did not meet the diagnostic criteria
for a diagnosis of PTSD. In other words, the veteran did not
have the requisite symptoms for a diagnosis of PTSD. The
psychiatrist rendered his opinion after reviewing the service
medical records and examining the veteran.
At this time, there is no competent evidence that the veteran
has PTSD. PTSD has not been diagnosed and the examiner
determined that the symptoms do not meet the diagnostic
criteria of PTSD. In the absence of a current PTSD
disability, there can be no valid claim and further
development would be futile. Since the preponderance of the
evidence is against the claim, the benefit of the doubt
doctrine does not apply and the claim must be denied. 38
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53
(1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing
Gilbert, 1 Vet. App. at 54.
The Court has stated, that VA's duty to assist "is not always
a one-way street. If a veteran wishes help, he cannot
passively wait for it." See, for example, Hurd v. West,
citing Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA
attempted to determine if there was additional medical
evidence that could be obtained. However, the veteran has
indicated that there is nothing else.
The Board notes that the veteran's stressors have not been
verified, but it concludes that further action to verify them
is not necessary. There is a difference between an
in-service stressor and a current diagnosis.
38 C.F.R. § 3.304(f). The VA psychiatrist stated that the
symptoms do not meet the diagnostic criteria for PTSD.
Accordingly, the Board's decision to decide the claim at this
time, rather than to develop it further, is proper.
38 C.F.R. § 3.304(c) (2001).
The veteran is informed that if he can obtain the post
service treatment records (which he has not clearly
identified) and/or a diagnosis of PTSD, he should petition to
reopen the claim.
ORDER
Entitlement to service connection for PTSD is denied.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals